Stallings v. Washington University
| Decision Date | 31 July 1990 |
| Docket Number | No. 56861,56861 |
| Citation | 794 S.W.2d 264 |
| Parties | Reyth E. STALLINGS, and Harold Stallings, Plaintiffs-Appellants, v. WASHINGTON UNIVERSITY, and Dr. William Strecker, Defendants-Respondents. |
| Court | Missouri Court of Appeals |
Mary Coffey, St. Louis, for plaintiffs-appellants.
Peter Spataro, St. Louis, for defendants-respondents.
This is a medical malpractice action.Plaintiffs, Mrs. Reyth Stallings and Mr. Harold Stallings, are wife and husband.They allege bodily injury to Mrs. Stallings and loss of consortium to Mr. Stallings as a result of malpractice allegedly occurring during prosthetic shoulder replacement surgery performed by Dr. William Strecker, an employee of Washington University, at Barnes Hospital.Defendants are Doctor Strecker and Washington University.
The jury returned a verdict in favor of both defendants.Plaintiffs appeal.We affirm.
Plaintiffs' arguments on appeal are based upon a juror's failure to disclose facts on voir dire and challenges to evidentiary rulings of the trial court.None of these arguments is persuasive.
The issue of nondisclosure of information by a venireperson on voir dire is a constant companion of the courts in Missouri.The principles used to lay this issue to rest in individual cases are now well established.E.g.Williams v. Barnes Hospital, 736 S.W.2d 33(Mo. banc 1987).
We recognize two kinds of juror nondisclosure: intentional and unintentional.
Intentional nondisclosure occurs (1) where there exists no reasonable inability to comprehend the information elicited by the question asked, and (2) where it develops that the prospective juror actually remembers the experience or that the experience was of such significance that his purported forgetfulness is unreasonable.Williams v. Barnes Hospital, supra at 36(Mo. banc 1987).Unintentional nondisclosure exists where the experience forgotten was insignificant or remote in time, or where the prospective juror reasonably misunderstands the question posed.Id.
The determination of whether a concealment is intentional or unintentional is left to discretion of the trial court and is reversible only on a showing of abuse of discretion.Id.Intentional nondisclosure of material information creates an inference of bias and prejudice and may become tantamount to a per se requirement of a new trial.Id. at 37.Unintentional nondisclosure mandates a new trial only if prejudice has occurred because the juror's presence on the jury did or may have influenced the verdict.Id.Prejudice is a question of fact for the trial court, reversible only for an abuse of discretion.Id.
In the present case, the voir dire of the prospective jurors was comprehensive and extensive.The venire panel was asked, individually and collectively, several hundred questions.The issue here is created by the failure of a juror, Mr. Ketcherside, 1 to disclose he was defendant in a personal injury action at the time he was questioned on voir dire.
During her initial inquiry on voir dire, plaintiffs' counsel asked a number of questions, none of which, however, asked the panel whether any of them had asserted or filed a claim, or had a claim asserted or filed against them.During his inquiry, defendants' counsel asked questions designed to determine whether any of them had been the moving party in asserting or filing a personal injury claim or in asserting or filing other types of claims.For example, he asked:
. . . . .
And I would like to know if any of you have ever ... hired an attorney; or perhaps maybe even done it yourself, where you have actually filed a lawsuit, filed a claim in a court of law, asking someone else to pay you money damages because you were injured.Anyone ever done anything similar to that, like Mrs. Stallings has done?
. . . . .
[H]as anyone ever filed a personal injury action similar to this?Let's take it a step further.Perhaps you haven't filed a lawsuit but you did have a personal injury.Perhaps, it was an auto accident or something similar where you never filed a suit, but you did either hire a lawyer or you tried to work it out yourself where you asked for some type of damages because you thought someone else was at fault or hurt you.Anyone ever done that?
. . . . .
None of you have ever filed any legal causes other than auto accidents?I take it that none of you have ever been a plaintiff like Mrs. Stallings in a medical malpractice claim, where you have actually sued a doctor or a hospital, or some other type of health care provider.
. . . . .
Then, in the second half of her voir dire, plaintiffs' counsel continued this line of questioning by asking:
[Defense counsel] mentioned anybody that's (sic) filed claims, anybody that may have filed a lawsuit.
Ladies and Gentlemen, I would like you to really search your minds as to that question.If it even has been fifteen years ago, and was for $500, would you please bring it up and tell us about it now?
. . . . .
Search your minds.That kind of information can be found out in the court records....So, I beseech you to please search your minds and tell us right now if anybody's ever had a claim, especially filed a lawsuit.
These questions of both counsel focus on discovering whether any of the prospective jurors had been the moving party in asserting or filing a claim, not whether any of them ever had a claim asserted or filed against them.Quite simply, Juror Ketcherside was not asked the latter question, and there was no need for him to answer a question not asked.Obviously, before the issue of nondisclosure can be created, it must be clear the venireperson would understand that the question asked required disclosure of the information not revealed.
Plaintiffs contend it is reasonable to conclude that Ketcherside knew he was being asked whether he had ever had a claim asserted or filed against him.This contention rests on two grounds.During voir dire, two venirepersons voluntarily disclosed claims asserted against themselves or family members in response to the question of plaintiffs' counsel, and, during the post-trial hearing on plaintiffs' motion for a new trial, Ketcherside stated he understood the voir dire was seeking to determine whether any venireperson had been either "plaintiffs or defendants in claims."
Plaintiffs' first ground stands logic on its head, and, thus, fails to provide support for plaintiffs' contention.The fact that two venirepersons answered a question that was not asked cannot mean the question was asked, either expressly or implictly.To the contrary, logic dictates these venirepersons misunderstood the question asked, and Ketcherside did not.
Plaintiffs' second ground also fails to provide any support.During the post-trial hearing, plaintiffs' counsel never asked Ketcherside whether he remembered the question asked by plaintiffs' counsel during voir dire and what that question meant to him.Rather, over defendants' objection, plaintiffs' counsel asked Ketcherside:
Do you understand ... that was the kind of information we were looking for?Whether you had been a plaintiff or a defendant in a claim?
To this, he did answer: "Correct."
But, this question posed at the post-trial hearing assumes the questions asked on voir dire were seeking to determine whether any venireperson was either a plaintiff or a defendant.The voir dire questions, however, do not support that assumption.The voir dire questions were solely directed to determine whether any venireperson was a moving party in asserting or filing a claim.The assumption made by plaintiffs' counsel about the voir dire in her question posed to Ketcherside during the post-trial hearing is a misleading mischaracterization, and Ketcherside's response to that mischaracterization deserves the diminished or lack of weight the trial court, apparently, accorded it.
At the post-trial hearing, Ketcherside also stated he did not mention the law suit pending against him at the time of voir dire because he"hadn't been served yet."Plaintiffs showed, however, that Ketcherside had in fact been served and counsel had entered his appearance on behalf of Ketcherside in that suit prior to the time of the voir dire here.Plaintiffs use this inconsistency as another attack on Ketcherside's credibility.
This testimony, isolated and starkly stated, is taken out of context.Ketcherside was asked by plaintiffs' counsel at the hearing whether he had "a lawsuit pending against" him at that time.He answered:
Now.But at the time of the jury, it was against my ex-landlord, who it was.See, I was not involved at the time that I was a juror.
Then, when asked whether he remembered the date he was served with the petition filed on August 26, 1988, he answered:
I really can't remember the date, August 26th, August 27th.
He was, in fact, served some 6 days later on September 4, 1988.
At the hearing, the court noted Juror Ketcherside "was a defendant in a lawsuit and had been served at the time of the Voir Dire," but it also noted Subsequently, the court must have accepted Ketcherside's explanations.In denying plaintiffs' motion for a new trial, the court implicitly found Ketcherside was neither a sophisticated liar nor a dissembler.Its denial and implicit finding are reasonable, considered in the light of the questions asked on voir dire.Since all those questions focused solely on a venireperson being a moving party in asserting or filing a claim, Ketcherside had no reason to respond to those questions, and, thus, it is not surprising he did not.
Plaintiffs also argue that if Ketcherside's nondisclosure was unintentional and reasonable, his presence on the jury "did or may have influenced the verdict" so as to prejudice plaintiffs.Williams v. Barnes Hospital, supra, 736 S.W.2d at 37.The burden of this showing,...
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